Armstrong 1: Correspondence

PAUL MORflNTZ ''

A

flTTORN€V AT LAW
P.O. Box 511

-Pacific Palisades, California 90272
(213) 459-4745

v

July 6, 1990

Court of Appeals of the State of California
Second Appellate District
3580 Wilshire Boulevard, Room 301
Los Angeles CA 90010

re: Civil Number B038975

Superior Court No. C 420153

Dear Clerk:

This office is co-counsel for cross-appellant Bent Corydon
in the above referred to appeal.

In the respondant and cross-appeal brief filed by this
office and Toby Plevin, on behalf of Bent Corydon, on page 30, we
refer to the "500 series (auto tapes)" which are subject of the
cross-appeal. The trial court had refused to allow us to have
said tapes as they were held subject to the attorney-client
privilege pursuant to Zolin v.. United States , 809 F.2d 1411. In
our brief we pointed out that since the ruling, the United States
Supreme Court subsequently rendered a decision remanding the same
for hearing to determine the tapes' discoverability. United
States v. Zolin , 109 S. Ct. 2619. In our brief we asked this
court to remand the issue to the trial court with instructions to
follow the guidelines stated by United States Supreme Court in
Zolin .

Since the filing of our brief, the ninth circuit rendered a
decision per the United States Supreme Court ruling. United
States of America v. Zolin , 90 Daily Journal D.A.R. 6890, holding
that the tapes are not subject to attorney-client privilege as
"partial transcripts (of the tapes) demonstrate that the purpose
of the MCCS project was to cover up past criminal wrongdoings.
The MCCS project involved discussion and planning of future fraud
against the IRS, in violation of 18 USC 371...the figures
involved in MCCS admit on the tapes that they are attempting to
confuse and defraud the United States government. The purpose of
the crime-fraud exception is to exclude such transactions from
protection of the attorney-client privilege."

We attach this recent decision to this letter so that it may
become part of the justices' review.

Very Truly Yours,

Paul Morantz

PM:fml
enclosure

J

flatly Appellate Kcpnrt

Thursday, Jun4

0

WiHis, No. 89-30076, slip op. at 3221 (9th Cir. April 2, 1990)
(- ‘trafficking in narcotics is very often related to the carrying
and use of firearms’ ") (quoting United States t. Ramos, 861
F.2d 228, 231 n.3 (9th.Cir. 1988)). Heldbcrg has failed to
demonstrate that it is clearly improbable that the possession
of a firearm is connected to the importation of a user’s quan¬
tity of a controlled substance.

AFFIRMED.

ATTORNEYS

, i

Privilege Doesn’t Protect Tapes That Prove
Attorney Was Retained to Promote Crime

Cite as 90 Daily Journal DA.R. 6890

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

United States of America,

Petitioner/Appellee/
Cross-Appellart t,

v. ..

FRANK S. Zoun,

Respondent /Appellee,

and

Church of Scientology of
California and Mary Sue
Huubajld,

Intervenors/AppeUanls/
Cross-Appellees .

Nos. 85-6065;
85-6105

D.C No.

CV 85-440-HLH

OPINION

On Remand from the United States Supreme Court
Filed June 20, 1990

Before; Alfred T. Goodwin, Chief Judge,

James R. Browning and Jerome Farris, Circuit Judges.

rate Category Sortout project arc admissible under
fraud exception to the attorney-client privilege in
Supreme Court’s ruling in United States v. Zoli
2619 (1989). We hold that the tapes arc admissi

i

“To invoke the [crime-fraud) exception su(
party sc*, -ring disclosure ... must make out a priraa fociO case
that the attorney was retained in order to promote Intended
or continuing criminal or fraudulent activity." United States
v. Hodge AZwelg, 548 F.2d 1347, 1353, 1354 (9thC& l?T7).
The Government has presented the following evideadi of
intended illegality: (1) Agent Pctcrscll’s Supplemental Decla¬
ration of March 8, 1985, (2) Pctcrsell’s Supplemental Decla¬
ration of March 15, 1985, and (3) partial transcript^ Whc
tapes themselves. 1 ' * •

%

<• J>'y

ji

In our first Zolin opinion we examined only the indepen¬
dent evidence presented—items one and two abov^-ind
held that “while not altogether insubstantial, [this evidence]
is not sufficient to make out the requisite prima fade showing
of intended illegality.** 809 F.2d at 1419. In its doc^on^ the
Supreme Court held that 'Jr •

evidence that is not “independent" of the contents of
allegedly privileged communications—like the par¬
tial transcripts in this case—may be used not,only in
the pursuit of in camera review, but also mky pro¬
vide the evidentiary basis for the ultimate shewing
that the crime-fraud exception applies.

Zolin, 109 S.Ct. at 2632 n.12. We must therefore examine the
transcripts and determine whether they, along with the inde¬
pendent evidence already reviewed, demonstrate sufficient
evidence of intended illegality to establish that the tapes art

within the crime-fraud exception. We hold that they do. ^

• *

The partial transcripts demonstrate that the purpose of
the MCCS project was to cover up past criminal wrong-doing.
The MCCS project involved the discussion and planning for
future frauds against the IRS, in violation of 18 U.S.C. §371.
See, e.g., United States v. Carruth, 699 F.2d 1017, 1021 (9th
Cir. 1983), cert, denied. 464 U.S. 1038 (1984). The figures
involved in MCCS admit on the tapes that they are attempt¬
ing to confuse and defraud the U.S. Government. The pur¬
pose of the crime-fraud exception is to exclude such
transactions from the protection of the attorney-client privi¬
lege.

Opinion by Judge Farris

COUNSEL

Gary R. Allen, Tax Division, Department of Justice, Wash¬
ington, D.C., for the pctitioner/appellcc/cross-appdlant.

Eric M. Liebcrman, Rabinowitz, Boudin, Standard, Kminsky
Sc Liebcrman, New York, New York, for the intervenors/
appcilanls/cross-appcllces.

j We therefore reject the district court’s holding that the
Government did not make out a case of intended illegality. In
light of the Supreme Court’s holding that the tapes them¬
selves can be examined for proof that would establish the
crime-fraud exception, the transcripts can be examined, and
they appear to make out the Government’s case on intended

illegality. On remand the district court should admit the
MCCS tapes into evidence, subject to any objections the par¬
ties might make at that time.*

Frederick Bennett, County Counsel, Los Angeles, California,
for the rcspondcnt/appcllce.

OPINION

FARRIS, Circuit Judge:

The facts of this case are set forth in our previous opinion,
United Stales v. Zolin. 809 F.2d 1411 (9th Cir. 1987), affd in
part and vacated in part, 109 S.Ct. 2619 (1989). Wc now
resolve whether tapes of two meetings of the Mission Corpo¬

REVERSl-D AND REMANDED.

’The issue of the potential illegality of the transenpts. mentioned by 0*
Supreme Court, see Zolm. 109 S.Ct at 2624 n 5. is not properly before this
court. The Church did nol raise this issue in its original appeal, and we will
not consider it on a later remand See NHwon. Rot't'i'i'. ft o! * tyyuixian^ ■
Ihdrorlcc.. 854 F 2d 1 538. I 54 7.48 (9th Cir. 1988)

*

‘TheGovernment hxi also attempted to present the declaration ui A|e»t
Philip Xanlhos as evidence, but wc have already denied the (joveinmcru
permiuion to prevent lht» declaration and will not consider it here.
March 3, 1987 Order. %

r

PROOF OF SERVICE BY MAIL

I am a resident of Los Angeles County, am over the age of

eighteen, and not a party to the herein address. My business
address is P.0. Box 511, Pacific Palisades, California 90272.

On A 1990, I served the within on the parties by placing a
copy of the same in a sealed envelope with postage thereon and
placed the same in the United States mail at Pacific Palisades

address as follows:

Court of Appeal of the State of California
Second Appellate District
Division Four

3580 Wilshire Boulevard, Room 301
Los Angeles CA 90010

Mr. Kendrick Moxon
Mr. Timothy Bowles
6255 Sunset Boulevard
Suite 2000

Los Angeles CA 90028

Mr. Gerald Armstrong
6838 Charing Cross Road
Berkeley CA 94705

Eric M. Lieberman
Rabinowitz, Boudin Standard
Krinsky & Lieberman, P.C.
740 Broadway, Fifth Floor
New York NY 10003-9518

Superior Court
111 N. Hill Street
Los Angeles CA 90012

Michael L. Hertzberg Esq.
740 Broadway, 5th Floor
New York, NY 10003-9518

Toby Plevin, Esq.

6360 Wilshire Boulevard
Suite 1600

Los Angeles CA 90048

Michael Flynn
Flynn Sheridan & Tabb
One Boston Place 26th Floor
Boston MA 02108

Julia Dragojevic, Esq.
Contos & Bunch
5855 Topanga Canyon Blvd.
# 400

Woodland Hills CA 91367

I declare that the above is true under the

perjury.
California

penalty of
Palisades,